Federal Register of Legislation - Australian Government

Primary content

Guides & Guidelines as made
This instrument revokes the Health Insurance (Section 19AB Exemptions) Guidelines 2015 and provides guidance for applying district of workforce shortage (DWS) determinations.
Administered by: Health
Made 10 Feb 2016
Registered 22 Feb 2016
Tabled HR 24 Feb 2016
Tabled Senate 25 Feb 2016
Date of repeal 29 Nov 2017
Repealed by Health Insurance (Section 19AB Exemptions) Guidelines 2017

EXPLANATORY STATEMENT

 

Health Insurance Act 1973

Health Insurance (Section 19AB Exemptions) Guidelines 2016

 

Authority

 

Subsections 19AB(1) and 19AB(2) of the Health Insurance Act 1973 (the HIA) prevent the payment of Medicare benefits for services provided by, or on behalf of, an overseas trained doctor (OTD) or foreign graduate of an accredited medical school (FGAMS), except where:

·                the person was first recognised as a medical practitioner in Australia before 1997;

·                the person was an OTD prior to 1 January 1997 and before that date had applied to undertake examinations to become a medical practitioner; or

·                the relevant medical service is provided more than 10 years after the person first became a medical practitioner, and the person either first became a medical practitioner before 18 October 2001, was a permanent Australian at the time of becoming a medical practitioner, or became a permanent Australian after first becoming a medical practitioner.

 

For the purpose of subsections 19AB(1) and 19AB(2):

·         an OTD is a person whose primary medical qualification was not obtained from an accredited medical school, being a medical school accredited by the Australian Medical Council and located in Australia or New Zealand; and

·           a FGAMS is a person whose primary medical qualification was obtained from an accredited medical school and who was not a permanent Australian, or a New Zealand citizen or permanent resident, when he or she first enrolled at an accredited medical school.

 

Under subsection 19AB(3) of the HIA, the Minister for Health has the power to grant an exemption from the restrictions in subsections 19AB(1) and 19AB(2) of the HIA (an exemption).  An exemption may be granted in respect of one person or a class of persons.  The Minister also has the power under subsection 19AB(4) of the HIA to make exemptions subject to any conditions he or she considers fit. 

 

Subsection 19AB(4B) of the HIA provides that the Minister must, in writing, determine guidelines that apply to the granting of exemptions and the imposition of conditions on such exemptions. 

 

Purpose

 

The Health Insurance (Section 19AB Exemptions) Guidelines 2016 (the Guidelines) revoke and replace the Health Insurance (Section 19AB Exemptions) Guidelines 2015 (the Previous Guidelines) made for subsection 19AB(4B). 

 

The Guidelines provide an updated definition of a district of workforce shortage (DWS) that will apply when assessing exemption requests from OTDs and FGAMS once the Guidelines take effect.  This definition has been updated to:

 

·         recognise the Northern Territory in its entirety as being a DWS for non-specialists (including general practitioners), specialists and consultant physicians due to a general shortage of doctors in the Territory;

·         recognise areas that are classified under the Australian Government’s Modified Monash Model (MMM) classification system as MM5, MM6 or MM7 as being a DWS for non-specialists (including general practitioners); and

·         introduce the concept of full-time service equivalence (FSE) that will apply when measuring the workloads of individual doctors for the purpose of making DWS determinations for all medical specialties. 

 

Background

 

Districts of workforce shortage (DWS)

 

The Guidelines provide a framework for considering requests for exemptions under subsection 19AB(3) of the HIA and applying conditions to exemptions.  An exemption enables a doctor who is an OTD or FGAMS and who would otherwise be prevented from providing Medicare-eligible services by the operation of subsections 19AB(1) and 19AB(2) to provide such services. 

 

The Guidelines provide that the key consideration when assessing most exemption applications is whether the location to which the application relates is in a DWS for the applicant’s field of medical practice.  For example, where the applicant is a specialist cardiologist, the primary consideration for granting an exemption will generally be whether the service location to which the application relates and at which the applicant is seeking to practise privately falls within a DWS for the specialty of cardiology.  Where the applicant is a general practitioner (GP) or other non-specialist for Medicare purposes, the primary consideration will generally be whether the applicant is seeking to practise in a DWS area for general practice.

 

The requirement that DWS status should serve as the primary consideration for most exemption decisions is intended to affect a more equitable distribution of the private medical workforce across Australia.  This requirement aims to alleviate medical workforce shortages in recognised DWS areas, particularly in regional and remote communities that experience difficulties in accessing medical services due to their distance from the capital cities.  

 

DWS areas are identified for each of the medical specialties by using the latest Medicare Benefits Schedule fee billing statistics and Australian Bureau of Statistics (ABS) estimated residential population data to determine the level of Medicare-subsidised medical service provision for each medical specialty in each geographical area of Australia. 

 

A map showing the DWS status of every Australian street address for GPs and other non-specialists, specialists and consultant physicians is provided on the DoctorConnect website: www.doctorconnect.gov.au/

 

The Guidelines also provide for circumstances where DWS status will not be the primary consideration; for example, where the applicant will be providing short term locum services or providing services at an Aboriginal and Torres Strait Islander primary health care service in respect of which a direction under subsection 19(2) of the HIA is in force.  

 

The Modified Monash Model (MMM)

 

The MMM is a remoteness area classification system that has been developed by the Department of Health (Health) [and agreed to? approved? by the Australian Government] to better categorise metropolitan, regional, rural and remote areas according to both geographical remoteness and population size. The system was developed to recognise the challenges in attracting health workers to smaller regional communities. 

The MMM overlays the Australian Statistical Geography Standard Remoteness Area (ASGS-RA) classification system that has been created by the Australian Bureau of Statistics (ABS) on the basis of the latest residential population data. 

The MMM establishes 7 remoteness categories that are based on remoteness area classifications adapted from the ABS’s ASGS-RA classifications as specified in the Australian Statistical Geography Standard (July 2011 edition), and better differentiates inner and outer regional areas based on the size of their residential populations.  The MMM categories can be summarised as follows:

MMM category

Description

1

Areas categorised RA 1 (Major Cities)

2

Areas categorised RA 2 (Inner Regional Australia) as determined by Health using ABS ASGS-RA classifications and RA 3 (Outer Regional Australia) as determined by Health using ABS ASGS-RA classifications that are in, or within 20km road distance, of a town with population >50,000.

3

Areas categorised RA 2 and RA 3 that are not in MM 2 and are in, or within 15km road distance, of a town with population between 15,001 and 50,000.

4

Areas categorised RA 2 and RA 3 that are not in MM 2 or MM 3, and are in, or within 10km road distance, of a town with population between 5,000 and 15,000.

5

All other areas in RA 2 and 3.

6

All areas categorised RA 4 (Remote Australia) as determined by Health using ABS ASGS-RA classifications that are not on a populated island that is separated from the mainland in the ABS geography and is more than 5km offshore.

7

All other areas – that being RA 5 (Very Remote Australia) as determined by Health using ABS ASGS-RA classifications and areas on a populated island that is separated from the mainland in the ABS geography and is more than 5km offshore.

 

A map showing the MMM status of every Australian street address is provided on the DoctorConnect website: www.doctorconnect.gov.au/

 

Full-time Service Equivalent (FSE)

 

FSE is an estimated measure of the workload performed by medical practitioners based on Medicare billing data. The FSE methodology models total hours worked for each practitioner based on the number of days worked, volume of services and Medicare Schedule fees. The FSE measure replaces the former full-time equivalent and full-time workload equivalent measures that were previously applied to the medical workforce.

A medical practitioner’s FSE is calculated using the following formula:

 

total days worked x average working hours per day

full-time benchmark

 

The definition also provides a benchmark - one FSE is the statistical equivalent of a workload of 7.5 hours per day, five days per week, 48 weeks per year.

 

Commencement

 

The Guidelines commence on the day after they are registered. 

 

Documents Incorporated by Reference

 

The following documents are incorporated within the Guidelines by reference:

·         Acts Interpretation Act 1901;

·         Australian Statistical Geography Standard, July 2011 edition, published by the Australian Bureau of Statistics;

·         Health Insurance Regulations 1975; and

·         Migration Regulations 1994.

 

Consultation

 

Health has not formally consulted external stakeholders during the process of revising the Guidelines.  The revisions that have been made to the Guidelines are limited in scope and focus on updating the definition of a DWS to account for minor amendments to the method for identifying DWS areas.  The new method will result in more areas being classified as a DWS.

 

The revisions to the definition are designed to better encourage doctors to practise in underserviced regional and remote communities across Australia, in particular the Northern Territory.  The changes are consistent with recommendations for improving the access to doctors in regional and remote Australia and the DWS system as a mechanism for supporting improvements to workforce distribution that were an outcome of the Independent Review of Australian Government Health Workforce Programmes (the Review).  This Review was announced as part of the 2012-13 Budget, and included consultations with a number of stakeholders, including the Australian Medical Association, Rural Health Workforce Australia, Rural Doctors Association of Australia and the Australian Medical Local Alliance.  The consultations were held in October, November, and December 2012.

 

When making revisions to the DWS definition in both the Guidelines and the Previous Guidelines, Health has referred to the recommendations included in the final report of the Review dated 24 May 2013 that were based on several submissions provided by individual stakeholders.  

 

 

Key recommendations were for the Australian Government to improve the DWS definition by:

 

·         using the ASGS-RA as introduced by the ABS in 2011 to inform DWS determinations; and

·         introducing a more accurate measure of the medical workforce that considers the services they are providing, particularly in communities that fall marginally outside of the requirements for being DWS (i.e. have Medicare Benefits Schedule fee billing statistics that fall within ten per cent of the national average).

 

The Guidelines provide an amended DWS definition that is a direct response to these recommendations.

 

One of the key changes is to make the most rural and remote areas of Australia a DWS for general practice and to use remoteness area classifications under the MMM as the basis for this determination. Health has developed and implemented the MMM in consultation with the Rural Classification Technical Working Group (RCTWG).  The RCTWG was convened in 2013 to address the limitations of the Australian Standard Geographical Classification – Remoteness Areas (ASGC-RA) System and to make recommendations to change the application of remoteness area classifications and the DWS to the Australian Government’s health workforce programs.

 

The RCTWG has assisted in defining and reviewing the parameters of the MMM and for making recommendations that Health uses remoteness area classifications as a basis for making DWS determinations considering the unique demands and challenges faced by GPs who service these areas.  The decision to declare areas that have a remoteness area classification of MM5, MM6 or MM7 (signifying the most remote areas) under the MMM as being DWS for general practice is based on work and recommendations of the RCTWG.

 

The membership of the RTCWG includes representatives from the Australian Medical Association, the Rural Doctors’ Association of Australia, Rural Health Workforce Australia, the National Rural Health Alliance, the Monash University School of Rural Health, the ABS, the Department of Human Services and several independent geospatial analysis experts.

 

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003. Details of this instrument are set out in Attachment A.

 

 


                                                                                                                  ATTACHMENT A

 

Health Insurance (Section 19AB Exemptions) Guidelines 2016

 

Part 1         Preliminary

 

Section 1    Name of Guidelines

 

Section 1 provides that the name of the instrument is the Health Insurance (Section 19AB Exemptions) Guidelines 2016 (the Guidelines).

 

Section 2    Commencement

 

Section 2 provides that the Guidelines commence on the day after registration.

 

Section 3    Object

 

Section 3 provides that the objective of the Guidelines is to provide a more equitable distribution of medical services in Australia by increasing the supply of medical practitioners in areas of most need, specifically regional and remote areas.  

 

Section 4    Revocation

 

Section 4 provides that the Health Insurance (Section 19AB Exemptions) Guidelines 2015 are revoked. 

 

Section 5    Definitions and interpretation

 

Subsection 5(1) defines terms used in the Guidelines.  The major change to subsection 5(1) is that the Guidelines include a different definition of a ‘district of workforce shortage’ (DWS) from that appearing in the Previous Guidelines.  

 

As was previously the case, there are separate methods for identifying a DWS in respect of general practitioners (GPs) and other non-specialists for Medicare purposes (non-specialists) and for specialists (which is taken to include consultant physicians) in a particular specialty.  For the purposes of the Health Insurance Act 1973 (the HIA) and accordingly these Guidelines, medical practitioners who are recognised by the Medical Board of Australia as specialists in the specialty of general practice are not classed as ‘specialists’ for the purposes of Medicare. 

 

Districts of Workforce Shortage for non-specialists

 

For GPs and other non-specialists, all of the following are defined in subsection 5(1) as a DWS:

(i)          the Northern Territory;

(ii)        Modified Monash Model areas 5, 6 or 7;

(iii)      a geographical area, determined by Health, in which the number of Full-time Service Equivalent (FSE) non-specialists, per person in the geographical area, is less than the current national average;

(iv)      a geographical area determined by Health where, using the same data used for the purposes of subparagraph (iii):

A.           the number of FSE non-specialists, per person in the determined area, is within 10 per cent (inclusive) of the current national average; and

B.           the non-specialists practising in the geographical area have an average FSE non-specialist to national average FSE non-specialist ratio of 1.3:1 or more.

 

The key change to the DWS definition as it applies to GPs and other non-specialists introduced by these Guidelines is the inclusion of subparagraphs (i) and (ii) above.  The objective of these changes is to recognise the Northern Territory and the most regional and remote areas of Australia, identified using the Modified Monash Model, as being DWS areas for GPs and other non-specialists.

 

The new DWS definition also uses the new FSE measure of the workforce to identify geographic areas that have:

 

·         a lower medical practitioner-to-population ratio (based on the average FSE for medical practitioners in that area) than the national average; or

·         a medical practitioner-to-population ratio (based on the average FSE for medical practitioners in that area) that varies from the national average by up to 10%, and the ratio of average FSE for non-specialists practising in the area to the national average FSE for non-specialists is 1.3:1 or more.  A ratio of 1.3:1 has been chosen because it identifies those geographical areas that are serviced by GPs and other non-specialists who are providing, on average, 30% more than the normal full-time level of medical service provision (represented by the national average FSE) to meet community demand. 

 

Modified Monash Model

 

The Modified Monash Model (MMM) areas 5, 6, and 7 are defined in subsection 5(1) as:

 

(a)     MMM5 - all areas in Remoteness Areas 2 or 3, that are not:

(i)      in, or within 20 kilometres by road of, a town with a population greater than 50,000; or

(ii)     in, or within 15 kilometres by road of, a town with a population of between 15,001 and 50,000; or

(iii)    in, or within 10 kilometres by road of, a town with a population of between 5,000 and 15,000.

 

(b)     MMM6 - all areas in Remoteness Area 4 that are not on a populated island that is separated from the mainland and is more than 5 kilometres offshore. 

 

(c)     MMM7 - all areas in Remoteness Area 5 on a populated island that is separated from the mainland and is more than 5 kilometres offshore.

 

Remoteness Areas for the purposes of the MMM are determined by the Department based on the July 2011 Australian Statistical Geography Standard (ASGS) Remoteness Area classifications developed by the ABS.  A map showing the Department’s Remoteness Area classifications can be accessed at www.doctorconenct.gov.au.

 

The Modified Monash Model has been created by Health to better categorise metropolitan, regional, rural and remote areas according to both geographical remoteness and population size.

 

Full-time Service Equivalent

 

The definition of a DWS as it applies to GPs and other non-specialists has also been revised to rely on the FSE measure of the medical workforce.  This replaces references to the full-time equivalent (FTE) and full-workforce equivalent (FWE) measures of the workforce that were used in identifying DWS areas under the former Guidelines. 

 

FSE is defined in subsection 5(1) to be a measure of medical practitioner workload obtained using the formula:

 

total days worked x average working hours per day

full-time benchmark

 

For the purpose of this formula, new definitions have been included in subsection 5(1) for:

·    total days worked for a practitioner, being the total number of days in the most recently completed FSE year on which the medical practitioner rendered a service for which a Medicare Benefits Schedule fee was paid;

·    FSE year, being a period of 12 months ending on 30 June;

·    average working hours for a practitioner, being the total working time for that practitioner divided by their total days worked;

·    total working time for a practitioner, being Department’s determination of the time worked by the medical practitioner in the most recently completed FSE year based on medicare benefits paid for professional services rendered by or on behalf of the medical practitioner; and

·    the full-time benchmark, being 7.5 hours of work per day, 5 days per week, 48 weeks per year, totalling 1800 hours.

 

Districts of Workforce Shortage for specialists

 

For medical practitioners who are specialists in a particular specialty, a DWS now includes a geographical area in which the number of FSE specialists in that specialty, per person in the area, is less than the national average.  The key amendment to this category of DWS is the replacement of the concept of FTE with the new FSE measure when creating the specialist-to-population ratios that inform DWS determinations for specialists and consultant physicians.  

 

A further change from the Previous Guidelines is that the Guidelines make the Northern Territory in its entirety a DWS in respect of medical practitioners who are specialists. 

 

An area that is classified by Health as outer regional (RA-3), Rural (RA-4) or Remote (RA-5), based on the ASGS-RA, remains a DWS in respect of medical practitioners who are specialists.  

 

The notes to the definition of ‘district of workforce shortage’ have been amended to indicate that Health provides a map that shows the MMM classification of every Australian street address on the DoctorConnect website: www.doctorconnect.gov.au/.  

 

The Note to subsection 5(1) indicates to readers that certain terms used in the Guidelines take their definition from the HIA.  These include ‘general practitioner’, ‘specialist’ and ‘consultant physician’.  This Note previously appeared in subsection 5(4) of the Guidelines.

 

Interpretation

 

Subsection 5(2) clarifies that a service location is in a DWS for a particular type of practitioner if:

·         for a GP or other non-specialist, the location is in a DWS for GPs and other non-specialists; and

·         for a specialist in a particular specialty, the location is in a DWS for specialists in that specialty.

 

Subsection 5(3) provides that a reference throughout the Guidelines to a specialist includes a reference to a consultant physician.  This is to increase readability of the Guidelines.

 

Subsection 5(4) provides references throughout the Guidelines to ‘the type of practitioner to which an application relates’ means a reference to either specialists in a particular specialty, or to GPs and other non-specialists.

 

Section 6    Considerations for exemptions – general

 

Section 6 sets out the matters the Minister for Health is to take into consideration when deciding on most applications for exemptions.   

 

Subsection 6(1) provides that the section is subject to sections 7 – 10 of the Guidelines.  Those sections set out considerations that are to apply in particular circumstances, for example where the applicant will be providing short-term locum services or will be providing services at an Aboriginal and Torres Strait Islander specific primary health care service.

 

Subsection 6(2) provides that the primary consideration for making decisions on applications for exemptions is whether the location for which the exemption is sought is in a DWS for the type of medical practitioner applying for the exemption (namely a specialist in a particular specialty, or a GP or other non-specialist).

 

Subsection 6(3) provides that the following may also be considered when assessing an application for an exemption under this section:

·         whether the applicant’s registration as a medical practitioner is subject to any conditions (paragraph 6(3)(a));

·         whether the applicant’s visa allows them to practise medicine or undertake clinical training as a medical practitioner (paragraph 6(3)(b));

·         whether the applicant has entered into, or commenced negotiations to enter into, an agreement to provide professional services at the relevant location (paragraph 6(3)(c));

·         whether the applicant is seeking to replace another OTD or FGAMS who practised privately at the location and held an exemption for the location, and whose Medicare provider number for the location has been cancelled.  The other OTD or FGAMS must have provided services at the location within the last 12 months (paragraph 6(3)(d));

·         whether the applicant is seeking to provide private medical services at a location during the after-hours period (paragraph 6(3)(e));

·         if the location to which the application relates is not in a DWS in respect of the type of practitioner applying for an exemption, whether the applicant commenced negotiations to provide services at the practice location while the location was considered to be a DWS (paragraph 6(3)(f); and

·         any other matters the Minister considers relevant (paragraph 6(3)(g)).

 

Subsection 6(4) provides that in section 6 a reference to a person who held an exemption for the location includes a reference to a person to whom a class exemption applied.  This is included for the avoidance of doubt.

 

Section 7 – Considerations for exemption – provision of services at Commonwealth funded Aboriginal and Torres Strait Islander primary health care service

 

Subsection 7(1) provides that this section applies where the applicant for an exemption will be providing, or has commenced negotiations to provide, services at an Aboriginal and Torres Strait Islander specific primary health care service.  These are primary health care organisations that predominantly service Aboriginal and Torres Strait Islander clients.  A direction under s19(2) of the HIA must be in force in respect of the organisation (see s5(1) of the Guidelines).

 

Where section 7 applies, subsection 7(2) provides that application for exemptions may not be assessed according to whether the Aboriginal and Torres Strait Islander specific primary health care service is in a DWS for the type of medical practitioner seeking the exemption.  Subsection 7(2) also provides that the Minister may take into account those matters set out in paragraphs 6(3)(a)-(e) of the Guidelines and any other matters he or she considers relevant.

 

Section 7 of the Guidelines aims to increase the number of medical practitioners providing private services to Aboriginal and Torres Strait Islander populations, even where those populations are located in major cities or are not otherwise located in areas of medical workforce shortage.

 

Section 8 – Considerations for exemption – spouses

 

Subsection 8(1) provides that section applies where the applicant is the spouse of:

·         a medical practitioner who is not prevented by section 19AB of the HIA from providing, or having rendered on their behalf, Medicare-eligible services – in other words a medical practitioner who is not an OTD or FGAMS, or who is an OTD or FGAMS who has a current section 19AB exemption or who falls into one of the classes to which the prohibition on payment of benefit for services provided by OTDs and FGAMS does not apply, for example OTDs or FGAMS who first became medical practitioners before 1 January 1997; or

·         a person who:

-          holds a general skilled migration visa following assessment by a relevant assessing authority as having a skilled occupation or a migration occupation in demand (at the relevant time); 

-          migrated to Australia within the last 10 years with the intention of working in that occupation; and

-          is currently employed in, volunteers in or is undertaking training in that occupation.

 

In all cases the spouse of the applicant must ordinarily reside in Australia.

 

Where these provisions apply, subsection 8(2) provides that when assessing an application for an exemption, whether the location to which the application relates is in a DWS for the relevant type of medical practitioner is not to be taken into account.  The Minister may take into account the matters set out in paragraphs 6(3)(a) - (e) of the Guidelines and any other matters he or she considers relevant.

 

Section 9 – Considerations for exemption – provision of locum services

 

Subsection 9(1) provides that the section applies where the applicant for an exemption has entered into, or has started negotiations to enter into, an agreement to provide locum services at a particular location for a maximum period of six months and the applicant has not previously provided locum services at the same practice under a subsection 19AB(3) exemption related to the provision of locum services.

 

Paragraph 9(1)(c) clarifies that a doctor may not have multiple locum placements at any one practice.

 

Where section 9 applies, subsection 9(2) provides that in deciding whether to grant an exemption whether the location is in a DWS for the relevant type of medical practitioner is not to be taken into account.

 

Subsection 9(2) also provides that the Minister may take into account the matters set out in paragraphs 6(3)(a) – (e) of the Guidelines and any other matters the Minister considers relevant.

 

Where a locum arrangement or proposed locum arrangement would be for more than six months and section 9 does not apply, the general considerations at section 6 of the Guidelines apply unless one of the other ‘exceptions’ to section 6 applies, for example that the application is to provide services at an Aboriginal and Torres Strait Islander primary health care service.

 

Section 10 – Considerations for class exemptions

 

Subsection 19AB(3) of the HIA provides that an exemption may be granted to a class of persons.

 

Subsection 10(1) of the Guidelines provides that the section applies to decisions in respect of exemptions for a class of persons.  Where section 10 applies, subsection 10(2) provides that the Minister is not required to consider whether members of the class will be providing services within a DWS, and can take into account any matters he or she considers relevant.

 

 

 

 

Section 11 – Conditions

 

Subsection 19AB(4) of the HIA provides that the Minister may make exemptions subject to any conditions he or she thinks fit.

 

Subsection 11(1) provides that except in special circumstances, all exemptions must be subject to the condition that they will only be applicable to a particular practice location, for example a particular medical practice, health centre or hospital.  However, subsection 11(2) provides that this does not apply to exemptions made in respect of a class of practitioners.

 

Subsection 11(3) provides that an exemption may be made subject to the condition that it only applies after hours.  ‘After hours’ is defined in subsection 5(1) of the Guidelines as all day Saturday, Sunday or public holidays and before 8:00 a.m. and after 6:00 p.m. on any other day.

 

Subsections 11(4) and 11(5) provide that the Minister is not limited in the conditions that he or she may place on an exemption by subsections 11(1) or 11(3), and that in making decisions about imposing conditions on an exemption the Minister may take into account any matters he or she considers relevant.

 

Section 12 – Period of Exemption

 

Subsection 12(1) provides that an exemption cannot be backdated and may be time limited to cease on a date specified in the exemption instrument.  

 

Subsection 12(2) provides that where an exemption is granted to a person to provide locum services, the exemption must be specified to cease on a day no later than six months from the date of commencement of the exemption.

 

Section 13 – Delegation

 

Subsection 13(1) provides that the Minister may delegate some or all of his or her powers or functions under the Guidelines, other than the delegation power, to an officer. 

 

Subsection 13(2) provides that ‘officer’ has the same meaning as in subsection 131(4) of the HIA, namely:

·         an officer of the Department of Health;

·         a person performing the duties of an office in the Department of Health;

·         the Chief Executive Medicare; or

·         an APS employee within the Department of Human Services.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Health Insurance (Section 19AB Exemptions) Guidelines 2016

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Health Insurance (Section 19AB Exemptions) Guidelines 2016

The Health Insurance Act 1973 (the HIA) provides the conditions for medical practitioners to provide medical services that are subsidised by Medicare rebates. Subsections 19AB(1) and 19AB(2) of the HIA prevent two cohorts of medical practitioners who were registered in Australia after 1 January 1997 from providing, or having provided on their behalf, services for which Medicare rebates may be paid. These cohorts are:

 

·      overseas trained doctors (OTDs) – medical practitioners who did not obtain their primary medical degree (Bachelor of Surgery/Bachelor of Medicine or equivalent) at an Australian Medical Council (AMC) accredited medical school located in Australia or New Zealand; and

·      foreign graduates of an accredited medical school (FGAMS) – medical practitioners who obtained their primary medical degree at an AMC accredited medical school in Australia or New Zealand but who were not permanent residents or citizens of either country on the day they enrolled in their degree.

 

The restrictions that apply under subsections 19AB(1) and 19AB(2) remain in effect for a minimum period of ten years commencing on the date the OTD or FGAMS is first registered as a medical practitioner in Australia. These restrictions are referred to as the ‘ten year moratorium requirement’.

 

Subsection 19AB(3) of the HIA provides that the Minister for Health may grant an exemption from the operation of subsections 19AB(1) and 19AB(2).  Where an exemption is granted, the OTD or FGAMS may provide services that attract Medicare rebates before their ten year moratorium has expired.  These exemptions are referred to as section 19AB(3) exemptions and, once granted, allow the Department of Human Services – Medicare to issue a Medicare provider number to an OTD or FGAMS and pay Medicare rebates for the services they provide.  

 

Subsection 19AB(4B) provides that the Minister for Health must make written guidelines that apply to requests for section 19AB(3) exemptions and to the imposing of conditions on exemptions.  

 

The Health Insurance (Section 19AB Exemptions) Guidelines 2016 (the Guidelines) revoke and replace the Health Insurance (Section 19AB Exemptions) Guidelines 2015 (the Previous Guidelines).  

 

 

 

Like the Previous Guidelines, the Guidelines provide that the primary consideration for the Minister for Health when assessing most applications for a subsection 19AB(3) exemption is whether the applicant medical practitioner is seeking to practise in a district of workforce shortage (DWS) for their medical specialty (see subsection 6(2) of the Guidelines). 

 

A DWS is a geographical area that has less access to Medicare-subsidised medical services than the national average with reference to the latest Medicare Benefits Schedule fee billing statistics.  A lack of access to Medicare-subsidised services is indicative of unmet local needs for medical services.

 

The Guidelines have been made to provide an updated definition for a DWS in subsection 5(1) that now:

 

·         specifies the Northern Territory in its entirety as a DWS for all medical specialties due to a general shortage of private medical practitioners in the Territory;

·         specifies Modified Monash Model (MMM) areas 5, 6 and 7 as DWSs for GPs and other non-specialists.  The MMM is a remoteness area classification developed by the Department of Health to better categorize metropolitan, regional, rural and remote areas according to both geographical remoteness and population size.  The MMM overlays the Australian Bureau of Statistics’ Australian Statistical Geography Standard Remoteness Area classification; and

·         uses the concept of Full-time Service Equivalence (FSE), rather than Full Time Equivalence (FTE), to measure the workload of individual doctors to inform DWS determinations for GPs, specialists and consultant physicians.

 

 

The MMM is a remoteness area classification developed by the Department of Health to better categorize metropolitan, regional, rural and remote areas according to both geographical remoteness and population size.  The MMM overlays the Australian Bureau of Statistics’ Australian Statistical Geography Standard Remoteness Area classification (July 2011). 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The MMM areas are:

 

MMM category

Description

1

Areas categorised RA 1 (Major Cities)

2

Areas categorised RA 2 (Inner Regional Australia) as determined by Health using ABS ASGS-RA classifications and RA 3 (Outer Regional Australia) as determined by Health using ABS ASGS-RA classifications that are in, or within 20km road distance, of a town with population >50,000.

3

Areas categorised RA 2 and RA 3 that are not in MM 2 and are in, or within 15km road distance, of a town with population between 15,001 and 50,000.

4

Areas categorised RA 2 and RA 3 that are not in MM 2 or MM 3, and are in, or within 10km road distance, of a town with population between 5,000 and 15,000.

5

All other areas in RA 2 and 3.

6

All areas categorised RA 4 (Remote Australia) as determined by Health using ABS ASGS-RA classifications that are not on a populated island that is separated from the mainland in the ABS geography and is more than 5km offshore.

7

All other areas – that being RA 5 (Very Remote Australia) as determined by Health using ABS ASGS-RA classifications and areas on a populated island that is separated from the mainland in the ABS geography and is more than 5km offshore.

 

A map showing the MMM status of every Australian street address is provided on the DoctorConnect website: www.doctorconnect.gov.au/.

 

FSE is an estimated measure of the workload performed by medical practitioners based on Medicare billing data. The FSE methodology models total hours worked for each practitioner based on the number of days worked, volume of services and Medicare Schedule fees. The FSE measure replaces the former full-time equivalent and full-time workload equivalent measures that were previously applied to the medical workforce.

A medical practitioner’s FSE is calculated using the following formula:

 

total days worked x average working hours per day

full-time benchmark

 

For the purpose of this formula:

·    total days worked for a practitioner is the total number of days in the most recently completed FSE year on which the medical practitioner rendered a service for which a Medicare Benefits Schedule fee was paid;

·    FSE year is a period of 12 months ending on 30 June;

·    average working hours for a practitioner is the total working time for that practitioner divided by their total days worked;

·    total working time for a practitioner is the Department’s determination of the time worked by the medical practitioner in the most recently completed FSE year based on medicare benefits paid for professional services rendered by or on behalf of the medical practitioner; and

·    the full-time benchmark is 7.5 hours of work per day, 5 days per week, 48 weeks per year, totalling 1800 hours.

 

With these amendments, the Guidelines will continue to function as an important mechanism for the Australian Government to achieve a targeted increase in the availability of Government subsidised medical services in geographic areas that experience the greatest need.  By providing a mechanism for encouraging doctors to practise in DWS areas, the Guidelines are of particular benefit to Australians who reside in regional and remote areas and who face difficulties with accessing appropriate medical services because of their distance from the capital cities.

 

Although the DWS status of the location to which the application relates is required by the Guidelines to be the primary consideration in deciding most applications for an exemption, subsection 6(3) of the Guidelines continues to specify a range of other matters the Minister may consider.  These remain unchanged from the Previous Guidelines and include:

·         whether any restrictions have been imposed on the applicant’s medical registration and whether the applicant’s visa allows them to practice medicine or undertake clinical training in medicine;

·         whether the applicant has entered into or commenced negotiations to enter into an agreement to provide medical services at the location to which the application relates and, if the location is not a DWS at the time the application is decided, whether the location was in a DWS at the time the applicant commenced negotiations to provide services at the location while it was in a DWS; and

·         whether the applicant is intending to provide private medical services in the after-hours period.

 

The Guidelines also set out a number of categories of application for an exemption for which the Minister is not to consider the DWS status of the location in making his or her decision whether to grant a subsection 19AB(3) exemption, specifically:

·         where the applicant will be providing services at an Aboriginal and Torres Strait Islander primary health care service that is subject to a direction made under subsection 19(2) of the HIA (section 7);

·         where the applicant is a spouse (including de facto partner) of:

o   a medical practitioner who is not prevented from providing Medicare-eligible services, or having them providing on their behalf, by subsections 19AB(1) and (2) of the HIA; or

o   a person who holds a general skilled migration visa and has been assessed as having a skilled occupation or migration occupation in demand, who migrated to Australia in the last 10 years to work in that occupation and who is currently employed in, volunteers in or is training in that occupation (section 8); or

·         where the applicant will be providing locum services at a location for a maximum of 6 months and has not previously provided locum services at the same location (section 9).

 

These categories, and the matters that may be taken into account in considering applications in these categories, remain unchanged from the Previous Guidelines. 

 

Subsection 19AB(3) of the HIA provides that exemptions may be made in relation to classes of persons.  The Guidelines make no change to the considerations that may be taken into account where the Minister is considering making an exemption in relation to a class of persons, and specifically provide that the Minister need not consider whether members of the class will be providing services in a DWS (section 10).

 

The requirement that an exemption for an individual must, except in special circumstances, be subject to a condition that it applies in a particular service location only has been retained (subsections 11(1) and 11(2) of the Guidelines).  The Guidelines also continue to provide that, without limiting the conditions that may be applied, an exemption may be made subject to the condition that it applies after-hours only (subsections 11(3) and (4)).

 

Finally, the Guidelines continue to prevent the backdating of exemptions and to limit the time that an exemption granted to an applicant seeking to provide locum services may remain valid (section 12).

 

Human rights implications

 

Rights to Health and social security

 

The right to health – the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR).  Whilst the UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable level of health.

 

The right to social security is contained in Article 9 of the ICESCR.  The right requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care.  Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation. 

 

The HIA underpins the Medicare system, which was implemented by the Australian Government to subsidise the cost of medical services for Australian citizens and permanent residents.  Under this system, Medicare rebates function as a payment to patients so that they may meet the costs of medical services.  The ten year moratorium requirement under section 19AB functions as a control that enables the Australian Government to:

·         identify medical services that will be subsidised by a Medicare rebate; and

·         influence the distribution of the private medical workforce with a view to ensuring Medicare-subsidised medical services are accessible to all Australian citizens and permanent residents.

 

The Guidelines are instrumental in defining the workforce distribution intent of section 19AB because they define a DWS and identify this as the key consideration for the Australian Government when assessing the majority of applications for an exemption under subsection 19AB(3). In this way, the Guidelines promote the right to health for all Australians by including a number of provisions that have a direct effect on medical workforce distribution, specifically the private medical workforce.

 

The changes to the definition of a DWS should result in a greater number of areas being classified as a DWS.  As a result, a greater number of OTDs and FGAMS are likely to be granted subsection 19AB(3) exemptions allowing them to practice privately in these new DWSs, which will increase the availability of Medicare subsided medical services there. 

 

The Guidelines also recognise that Aboriginal and Torres Strait Islander persons may be marginalised in terms of their ability to access appropriate medical services for a number of reasons, even where they do not reside in a DWS.  The Guidelines retain special provisions that enable OTDs and FGAMS to obtain a subsection 19AB(3) exemption to provide affordable medical care through Aboriginal and Torres Strait Islander primary health care services across Australia without the DWS status of the location of the service being a consideration.  The Guidelines also recognise the place of locum doctors in ensuring the availability of private medical services in all locations in Australia, and applications from OTDs and FGAMS intending to work in short term locum positions are not assessed based on the DWS status of the practice location. 

 

The Guidelines do not prevent Australians residing in an area that is not considered to be a DWS from accessing medical services, including services that are subsidised through the Medicare system.  All Australians continue to have the right to choose their doctor and to receive a Medicare rebate for any service provide by a Medicare eligible doctor.

 

The Guidelines improve the ability of all Australians to maximise their enjoyment of their rights to health and social security.  There is no incompatibility with the right engaged because the Guidelines serve a legitimate objective that is reasonable, necessary and proportionate in the circumstances. 

 

Right to Freedom of Movement

 

The right to freedom of movement is contained in articles 12 and 13 of the International Covenant on Civil and Political Rights. The right to freedom of movement includes the right to move freely within a country for persons who are lawfully within a country. The right to freedom of movement also includes a right to enter a country for persons who are citizens of that country and the right to leave any country.

 

The Australian Government is not directly responsible for determining where any doctor (Australian or overseas trained) may practise medicine.  Eligibility to practise medicine in Australia is determined through the medical registration process.  A doctor may only practise medicine once they are registered with the Medical Board of Australia (MBA).  The MBA imposes conditions or restrictions on the practice of some doctors, which in some cases will restrict them to working in particular practices. 

 

 

 

Subsections 19AB(1) and (2) of the HIA prevent certain OTDs and FGAMS from providing services for which Medicare rebates will be payable, or from having Medicare-eligible services provided on their behalf, unless an exemption granted under subsection 19AB(3) of the HIA applies to the OTD or FGAMS. 

 

However, it should also be noted that OTDs and FGAMS are free to provide professional medical services that are not subsidised by the Medicare scheme, meaning that section 19AB of the HIA is not relevant and a subsection 19AB(3) exemption is not required by the practitioner. 

 

Where an OTD or FGAMS chooses to provide private medical services and seeks a subsection 19AB(3) exemption, the Guidelines establish that the primary consideration for the Minister will usually be whether the applicant is seeking to practise privately in a DWS area for their specialty.  However, the Guidelines set out a range of other matters that may be taken into account, including whether:

·    the applicant is proposing to provide after hours services and the location to which the application relates;

·    services were provided at the location within the last 12 months by another person covered by a subsection 19AB(3) exemption whose Medicare provider number has since cancelled; or

·    the applicant has entered into or commenced negotiations to enter into an agreement to provide services at the location to which the application relates.

 

Additionally, as mentioned above the Guidelines also specify situations in which the DWS status of the applicant’s proposed practice location is not to be taken into consideration.

 

Nothing in the Guidelines forces OTDs and FGAMS to provide medical services in a DWS or any particular area in Australia, or requires OTD or FGAMS to service a particular group of patients or to provide a particular set of medical services within their medical specialty.

 

The Guidelines also do not place any restriction on ability of OTDs or FGAMS to either enter or leave Australia.  The Guidelines are not incompatible with the right to freedom of movement.

 

Rights of Equality and Non-Discrimination

 

The rights of equality and non-discrimination are contained in articles 2, 16 and 26 of the International Covenant on Civil and Political Rights.  The rights of equality and non-discrimination provide that laws, policies and programs should not be discriminatory and also that public authorities should not apply or enforce laws, policies or programs in a discriminatory or arbitrary manner.

 

The provisions of the Guidelines are intended to serve an important medical workforce distribution function.  The Guidelines and the related section 19AB restrictions limit the capacity of OTDs and FGAMS to provide services for which Medicare rebates are payable.  However, OTDs and FGAMS are not identified on the basis of their race, their descent, or their national or ethnic origin.

 

 

 

These doctors are identified according to:

·    the institution from which the doctor obtained their primary medical degree (OTDs); and

·    the institution from which the doctor obtained their primary medical degree and whether the doctor was a citizen or permanent resident of Australia or New Zealand at the time of enrolling at the institution (FGAMS). 

 

The ten year moratorium requirement is applied uniformly to all medical practitioners who belong to the OTDs and FGAMS cohorts. Australian citizens, permanent residents and temporary residents who fall into these cohorts are all subject to the same restrictions under the ten year moratorium requirement and receive the same treatment by each of the provisions of the Guidelines.

 

The Guidelines do not provide for any decisions about the granting of subsection 19AB(3) exemptions to be based on the race, national origin, age, gender or religion of the applicant.  The Australian Government does not consider or record the race, decent, place of birth or ethnicity of any doctor when considering their request for a subsection 19AB(3) exemption.

 

The Guidelines do provide that an application from a practitioner in particular spousal relationship (including a de facto relationship) should not be assessed according to the DWS status of the location at which the applicant wishes to provide services.  These are where the applicant is the spouse of:

·    another medical practitioner who is not subject to the 10 year moratorium requirement, or who hold a subsection 19AB(3) exemption; or

·    a person on a general skilled migration visa with a skilled occupation in demand, who migrated to Australia to work in that occupation and who is currently employed in, volunteers in or is training in that occupation.

 

These ‘spousal exemption’ ensures that the 10 year moratorium requirement:

 

·    does not adversely impact the Australian Government’s efforts to attract and retain skilled migrants into the non-medical practitioner occupations that are listed on the Skilled Occupation List or former Migration Occupation in Demand List; and

·    increases the likelihood that an OTD or FGAMS who already holds a subsection 19AB(3) exemption to work in a DWS and who is in a spousal relationship with another to OTD or FGAMS applying for an exemption will continue to work in that DWS;

 

The spousal categories achieve these reasonable objectives by allowing an OTD or FGAMS to apply for a Medicare provider number for a practice location that is near to their spouse’s place of employment, on the condition that their spouse’s current employment and migration status satisfy section 8 of the Guidelines.

 

The Guidelines are not incompatible with the rights of equity and non-discrimination.

 

 

 

 

Conclusion

 

The Health Insurance (Section 19AB Exemptions) Guidelines 2016 are compatible with human rights because the provisions contained within the Guidelines advance the protection of human rights by enabling limited resources (Medicare benefits) to be spent more effectively and for the benefit of all Australians. To the extent that the Health Insurance (Section 19AB Exemptions) Guidelines 2016 may limit human rights, those limitations are reasonable, necessary and proportionate. 

 

 

Ms Alison McAuslan

Director

Access Policy Section

Rural Access Branch

Health Workforce Division

Department of Health